Derrick Maurice Brown appeals from the denial of his motion to withdraw his guilty plea. He primarily contends the trial court failed to hold a proper hearing on the motion. We agree. Brown was indicted for aggravated sodomy and sexual assault against a person in custody. It was alleged that he forced a 62-year-old resident of an assisted care group home to engage in oral sex. On April 18, 2007, Brown pled not guilty. On January 28, 2008, he elected to plead guilty to sexual assault against a person in custody. The State agreed to nolle prosequi the first count. Brown was sentenced to five years on probation and subjected to two special conditions of probation, the first of which was one hundred and fifty hours of community service. The second states “said defendant is to be evaluated to see if sex offender probation supervision conditions are warranted, with the exception of his natural children.” On February 26, within the same term of court, he moved to withdraw his plea on the grounds that his court appointed attorney was ineffective and his plea was not knowingly and voluntarily made. The same attorney who represented him at his plea hearing filed the motion to withdraw and represented him at the hearing. The only evidence she presented was Brown’s testimony and she declined to present a closing argument. The trial court denied the motion on March 5. Separate appellate counsel made an appearance on March 18 and filed a notice of appeal on Brown’s behalf.
Brown contends the trial court held an improper hearing on his claim of ineffective assistance of counsel because he was still represented by the same attorney, whereas new counsel should have been appointed. He adds that the court did not require trial counsel to testify regarding her actions at the plea hearing.
